Gwendolyn Martin

[2020] FWC 3125

[2020] FWC 3125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Gwendolyn Martin
(AG2019/4325)

Market and business consultancy services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 15 JUNE 2020

Application for termination of the Roy Morgan Enterprise Agreement 2014-2017 – application dismissed.

[1] Ms Gwendolyn Martin has made an application pursuant to section 225 of the Fair Work Act 2009 (Act) (Application) for the Fair Work Commission (Commission) to terminate the Roy Morgan Enterprise Agreement 2014-2017 (Agreement). The Agreement commenced operation on 12 December 2014 and nominally expired on 12 December 2017.

Background

[2] The employers covered by the Agreement are Roy Morgan Interviewing Services Pty Ltd (RM Interviewing) and Roy Morgan Research Limited (RM Research). 1 The employers are market research companies. RM Interviewing is a wholly owned subsidiary of RM Research.2 RM Research employs approximately 210 full-time and part-time employees.3 RM Interviewing employs approximately 780 casual employees who conduct either face-to-face market research interviewing (door-to-door) or telephone market research interviewing (known as CATI interviewers). Approximately 200-250 of these employees are engaged as CATI interviewers, with the remaining 530-580 employees being employed as face-to-face interviewers.4

[3] I note that the approval decision provides that the Agreement is a multi-enterprise agreement. 5 RM Interviewing is a wholly owned subsidiary of RM Research. RM Research and RM Interviewing are therefore related bodies corporate and, as such, are single-interest employers as defined by section 172(5)(b) of the Act. The Agreement is therefore a single-enterprise agreement6 rather than a multi-enterprise agreement.7

[4] The Agreement applies to each of the employers and their employees who earn less than the high income threshold, as determined pursuant to section 333 of the Act. 8 The Agreement is divided into three parts. Part A applies to all employees, Part B applies to employees employed by RM Research only and Part C applies to employees employed by RM Interviewing only. Part C has separate provisions which apply to face-to-face market research interviewers and CATI interviewers. Employees are employed in one of the classifications set out Appendix 1 to the Agreement. Appendix 1 provides an 11 level classification structure, determined by duties performed. Classification Levels 2 and 3 contain two sub-classifications, being Level 2(a) and Level 2(b) and Level 3 and Level 3(a). Face-to-face market research interviewers, including Ms Martin, are, prima facie, engaged at Level 3 under the Agreement.

[5] Negotiations for a new enterprise agreement commenced in November 2017 (Proposed New Agreement). Ms Martin was a bargaining representative for the Proposed New Agreement. In October 2019 the agreement was approved by a majority of employees and lodged with the Commission for approval on 31 October 2019. Following correspondence and communication between the Commission and the employers, the application for approval of the Proposed New Agreement was withdrawn on 21 January 2020. An amended proposed new agreement was provided to bargaining representatives on 20 February 2020 with the intention of the employers being to put the amended proposed new agreement to the vote of employees in mid-late March 2020. No further agreement has yet been lodged with the Commission.

[6] The Agreement reached its nominal expiry date on 11 November 2017. Ms Martin is employed by RM Interviewing on a casual basis as a face-to-face market research interviewer. Ms Martin has standing to make the Application as, pursuant to section 225(b) of the Act, she is an employee covered by the Agreement. Accordingly, the jurisdictional prerequisites for the making of an application under section 225 of the Act are satisfied.

[7] In the circumstances, and with the consent of the Ms Martin and the employers, I have determined to deal with the application on the papers without conducting a hearing.

[8] For the reasons that follow, I have concluded that it is not appropriate to terminate the Agreement.

Consideration

[9] Section 226 of the Act provides as follows:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

Submissions

[10] Ms Martin, RM Research and RM Interviewing filed submissions.

[11] In addition, submissions were received from Ms Blair and Ms Moulston. Neither Ms Blair nor Ms Moulston identified in their submissions by whom they were employed or the role in which they were employed. However, I infer from their material that both are casual Level 3 face-to-face market research interviewers employed by RM Interviewing and proceed on that basis.

Not contrary to the public interest – s.226(a)

[12] In Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd 9(Aurizon), the Full Bench concluded, drawing on the decision in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 200010 (Kellogg) that the ‘public interest’ refers to matters that might affect the public as a whole, such as the achievement or otherwise of the objects of the Act, employment levels, inflation and the maintenance of proper industrial standards. The public interest is distinct in nature from the interests of the parties, though those matters may be simultaneously affected.11

[13] Ms Martin contends that the terms and conditions of employment for face-to-face market research interviewers under the Agreement, specifically in relation to rates of pay and classification, telephone allowance, minimum hours and travel time, have fallen under the Market and Social Research Award 2010 (Award) and it is therefore in the public interest for the Agreement to be terminated. 12 She says that the “bulk of employees” employed by RM Research and RM Interviewing are employed as face-to-face interviewers and the bulk of employees of the employers are therefore subject to terms and conditions of employment below those provided by the Award.13 She contends that termination of the Agreement would bring the terms and conditions of employment of face-to-face market interviewers in line with industry standards.14

[14] RM Research and RM Interviewing submit that termination of the Agreement would not be in the public interest. 15 They submit that the termination of the Agreement would unfairly and unreasonably impact on the terms and conditions of employment of employees of RM Research and CATI interviewers employed by RM Interviewing.16 They say that these employees “would not benefit” from termination of the Agreement17 and note that there have been no submissions made to the Commission concerning the effect of the Agreement on employees of RM Research or CATI interviewers employed by RM Interviewing.18

[15] For the reasons set out below, I accept Ms Martin’s contention that she, and other Level 3 face-to-face market research interviewers employed on a casual basis by RM Interviewing will be better off under the Award than under the terms of the Agreement. Although these matters affect private interests, they are also relevant to the consideration of the public interest. Even if, as submitted by the employers, employees of RM Research and CATI Interviewers would not benefit from the termination of the Agreement, the termination of the Agreement would not result in the absence of ‘proper industrial standards’ for those employees. Their employment would be subject to the Award. The Award provides for ‘proper industrial standards’ as that term is used in Kellogg.

[16] Section 226(a) does not require the Commission to be satisfied that the termination of the Agreement is in the public interest. The Commission must be satisfied that it is not contrary to the public interest to terminate the Agreement. Based on the material filed with the Commission, I am satisfied that termination of the Agreement is not contrary to the public interest.

Appropriateness of terminating the Agreement – section 266(b)

[17] Ms Martin supports termination of the Agreement. As set out above, Ms Martin contends that the terms and conditions of employment for casual Level 3 face-to-face market research interviewers under the Agreement, specifically in relation to rates of pay and classification, telephone allowance, minimum hours and travel allowance, are below those provided by the Award. Ms Martin filed with the Commission a document which compares the Award provisions in relation to these matters with the provisions in the Agreement. 19

[18] The comparison document makes the following assertions:

•  Face-to-face interviewers are classified as Level 5 under the Award;

•  The pay rate for a casual Level 5 employee under the Award is $28.84 per hour, while the rate of pay for a corresponding casual Level 3 employee under the Agreement is $28.56 per hour. Such employees are therefore paid 0.28 cents less per hour under the Agreement than the Award;

•  Under the Award, employees required to have a telephone as part of their work, will be reimbursed the cost of rental and all calls made as part of the employee’s work duties and the cost of installation (if this has been required by the employer). The Agreement provides that the employer will reimburse the employee for the cost of use of their own home or mobile telephone or home internet account, subject to the production of receipts and the approval of the employee’s supervisor;

•  Under the Award, casual employees must be engaged and paid for a minimum of two hours, while the Agreement contains no such minimum requirement;

•  The travel allowance under the Agreement is paid after two hours of travel, at half the employee’s usual hourly rate, whereas the Award provides for payment after one hour at the employee’s full hourly rate. Further, the allowance is not payable under the Agreement if the employee uses their own vehicle. 20

[19] Ms Blair’s submissions are consistent with those of Ms Martin and reference rates of pay, telephone allowance, minimum period of engagement and travel allowance. 21 Additionally, Ms Blair submits that the motor vehicle allowance provided under the Agreement is 76 cents per kilometre, whereas the Award provides for an allowance of 78 cents per kilometre.22 Ms Blair also raises other matters,23 such as alleged bullying,24 which I do not consider are relevant to the current proceedings. I have not had regard to those matters.

[20] Ms Moulston submits that the rates of pay and conditions under the Agreement do not meet the Award or industry standards but does not provide any articulation of the asserted deficiencies. 25 Accordingly, I give little weight to Ms Moulston’s submission.

[21] The employers oppose termination of the Agreement. The employers initially objected to the Application solely on the basis that an application had been made to the Commission for the approval of a new enterprise agreement (the Proposed New Agreement) and, as such, they contended that the Application was unnecessary, vexatious and a futile exercise. 26 However, following initial consideration of the Proposed New Agreement by the Commission and correspondence with the parties regarding it, the employers withdrew the application for approval of the Proposed New Agreement. Notwithstanding assertions from the employers that a further agreement would be put to employees for vote within seven days of their submissions in this matter and that the Application therefore continues to be vexatious, unnecessary and futile,27 the Commission’s records do not indicate that a further application for approval of an enterprise agreement to replace the Agreement has been made.

[22] I note that both the Applicant and the employers made not insignificant submissions regarding the Proposed New Agreement, and in particular, the Commission’s concerns regarding whether the Proposed New Agreement passed the better off overall test. While the Proposed New Agreement is contextually relevant, its approval or otherwise, and matters to do with whether it was capable of passing the better off overall test, are separate matters not directly relevant to the matters which I am required to consider under section 226.

[23] As to the matters raised in the comparison document, the employers dispute that Level 3 casual face-to-face market research interviewers are paid below the relevant Award rate of pay. They contend that the actual hourly rate paid depends on the particular project the employee works on and their classification. 28 However, they filed no probative evidence to support this assertion. Further, they accept that the Level 3 rate of pay in the Agreement is the minimum rate payable to employees in that classification.29

[24] As to Ms Martin’s assertions regarding minimum hours, telephone reimbursement and travel allowance, the employers submit that these are Ms Martin’s “opinion only” and that they disagree with those opinions. 30 The employers made no other submissions regarding these matters.

[25] The current rate of pay for casual face-to-face (door-to-door) market research interviewers under the Award is $28.84 per hour. 31 It appears uncontested that the minimum rate of pay under the Agreement for that classification of casual employee is currently $28.53 per hour. Accordingly, prima facie, the Agreement provides a lesser minimum rate of pay for casual Level 3 employees of 28 cents per hour, as contended by Ms Martin. Whilst it may be that, at times, the employer provides an actual rate of pay greater than the Agreement minimum rate of pay, based on particular projects worked, the Agreement does not in its express terms provide for this. As such, these additional payments appear to be entirely discretionary. Such payments are therefore not a component of, or relevant to, the minimum rate of pay provided under the Agreement. As to the classification held, as set out above, Level 3 has two classifications within it, Level 3 and Level 3(a), the latter being known as ‘Premium Fieldwork Interviewers’. The Agreement provides for increased hourly rates of pay for employees engaged at Level 3(a), together with additional performance requirements. This is therefore a different classification of employee, notwithstanding that it is a subclassification of Level 3.

[26] I note that section 206(2) of the Act provides that, where the rate of pay under an enterprise agreement is less than the award rate, the agreement has effect in relation to an employee as if the agreement rate were equal to the award rate. Nevertheless, I have taken into account that the minimum rate of pay for casual Level 3 face-to-face market research interviewers under the Agreement is 28 cents per hour below the minimum rate of pay which applies to these employees under the Award.

[27] Clause 43.4.1 of the Agreement provides that casual face-to-face market research interviewers will be allocated hours of work depending on the operational requirements of the employer and are not guaranteed hours of work or on-going employment. 32 The clause further provides that casual employees are not guaranteed any minimum shift length.33 Clause 11.4 of the Award provides that a casual employee must be engaged and paid for at least two consecutive hours of work on each occasion they are required to work. Ms Martin submits that in these circumstances the disparity between the Agreement and the Award is “very straight forward.” I consider the absence of any minimum engagement for casual employees is, prima facie, less beneficial than the Award. Accordingly, and in the absence of any substantive submissions by the employers on this matter, I accept Ms Martin’s contention that the Agreement provisions in this regard are less beneficial than the Award.

[28] Clause 13.4 of the Agreement requires production of appropriate receipts and invoices and approval by the employee’s supervisor in order to obtain reimbursement of telephone expenses. No such requirements are expressly included in clause 17(1)(c) of the Award. I accept that, on one view, the Agreement provisions are more onerous than those contained in the Award. On this basis, and in the absence of any substantive submissions by the employers on this matter, I am prepared to accept Ms Martin’s contention that the Agreement provisions in this regard are more onerous and therefore less beneficial than those under the Award.

[29] Clause 45.3 of the Agreement provides that an employee required to travel, other than to their usual place of work and not using their private vehicle, will be paid at half their usual hourly rate for all daily travel in excess of two hours. Clause 13.6 of the Award, provides that if an employee is required to commence work at a location away from the employee’s usual work location, working time will include travel time between the employee’s home and the work location and return, less one hour. Ms Martin submits that the Agreement is less beneficial than the Award because travel time is paid at half the applicable hourly rate and only after two hours, whereas under the Award, travel time is at the full hourly rate and applies after one hour. Further, she submits that under the Agreement travel allowance is not paid if the employee is using their private vehicle and such an exclusion is not contained in the Award. I accept those contentions. I consider it clear that the provisions of clause 45.3 of the Agreement are less beneficial than the provisions of clause 13.6 of the Award.

[30] Clause 13.1(a) of the Agreement provides for a motor vehicle allowance of 76 cents per kilometre. The Award at clause 16.2 provides for a motor vehicle allowance of 78 cents per kilometre. Ms Blair submits that the Agreement provisions are therefore less beneficial. The employers made no submissions as to this contention. Whilst clause 16.2 of the Award does provide for a higher per kilometre entitlement, that entitlement is subject to clause 16.2(b) which provides that a deduction of 22 kilometres will be made from the distance travelled for employees working less than three hours. There is no evidence before the Commission as to how this provision operates in practice in the case of Level 3 face-to-face market research interviewers. Accordingly, on the material currently before the Commission, I am unable to conclude that the Award entitlement is more beneficial than the entitlement under the Agreement.

[31] In light of the above, I therefore consider that in relation to minimum rates of pay for casual Level 3 market research interviewers, minimum period of engagement, telephone allowance and travel allowance, the Award is more beneficial than the Agreement. On this basis, I accept that Ms Martin and Ms Blair would be better off under the Award. However, the evidence adduced does not allow me to make any finding about the number of employees who will be better off under the Award than under the terms of the Agreement. There is no evidence as to how many face-to-face market interviewers are employed at Level 3 and how many are employed at Level 3(a) or the rates of pay that apply to employees engaged at Level 3(a). Further, even if it be assumed that all of the 530-580 employees employed by RM Interviewing as casual face-to-face market research interviewers are employed at Level 3, there is no evidence as to the circumstances of the other 410-460 employees employed by the employers. There is no evidence as to the circumstances of employees in any of the other multiple classifications contained in the Agreement, those employed as CATI interviewers or those employees employed by RM Research or the likely effect that termination of the Agreement would have on them, although I note the employers’ submission that these employees would not benefit from termination of the Agreement. Accordingly, on the basis of the material currently before the Commission and taking into account all of the circumstances, including those required by section 226(b)(i) and 226(b)(ii) of the Act, I do not consider it appropriate to terminate the Agreement.

[32] The application to terminate the Agreement is therefore dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 27 April 2020

Respondent, 24 April 2020

Printed by authority of the Commonwealth Government Printer

<AE411540  PR720209>

 1   Roy Morgan Enterprise Agreement 2014-2017, cl.3

 2   Statement of James Yeatman dated 9 March 2020 at [2]

 3   Ibid at [4]

 4   Ibid at [5]

 5   PR558537

 6   Fair Work Act 2009 (Cth), s.172(2)

 7   Fair Work Act 2009 (Cth), s.172(3)

 8   The high income threshold is currently $148,700 per annum

 9   [2015] FWCFB 540

 10 (2005) 139 IR 34.

 11   At [129]

 12   Applicant’s further submissions dated 20 February 2020, at [6]

 13   Form F24C - Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date, dated 12 November 2019 at q. 2.1

 14   Ibid

 15   Statement of James Yeatman dated 9 March 2020 at [39]

 16   Ibid at [37]

 17   Ibid at [38]

 18   Ibid at [37]

 19   Applicant’s further submissions dated 20 March 2020

 20   Also see Applicant’s further submissions dated 20 February 2020 at [8]-[20]

 21   Submissions of Cheryl Blair dated 13 December 2019

 22   Ibid

 23   Ibid

 24   Ibid

 25   Submissions of Vanessa Moulston dated 20 December 2019

 26   Employers’ submissions dated 14 January 2020

 27   Statement of James Yeatman dated 9 March 2020 at [41]

 28   Ibid at [46], [47]

 29   Ibid at [46]

 30   Ibid at [50]

 31   Market and Social Research Award 2010, cl.14.1

 32   Clause 43.4.1(a)

 33   Clause 43.4.1(b)